Barnes, Janian, Kridjian - Decision and Order, April 24, 2000

Decision and Order, April 24, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

causing, engaging in or maintaining a condition or activity
which presents an imminent danger to the health or welfare of the people
of the State of New York, or which is likely to result in
irreversible or irreparable damage to natural resources of the state
in violation of §71-0301 of the Environmental Conservation Law of the State of New York (ECL),
and Title 6 of the Official Compilation of Codes, Rules and Regulations (6NYCRR) Part 620.

- by -

John R. Barnes, Henri Janian, and Ara Kradjian

Respondents

Decision and Order

DEC Case No.

R7-2000120-3

WHEREAS:

Pursuant to a Summary Abatement Order and Notice of Hearing dated January 31, 2000, a hearing was held pursuant to 6 NYCRR Part 620 before Administrative Law Judge Daniel P. O'Connell on February 8, 2000 at the Department's Region 7 Offices in Syracuse, NY. The Department of Environmental Conservation was represented by Jeffrey D. Brown, Esq., Regional Attorney, and Scott W. Crisafulli, Esq., Water Compliance Counsel. Respondent John R. Barnes, was represented by James E. Konstanty, Esq., Oneonta, NY. Respondents Henri Janian and Ara Kradjian, were represented by Michael R. Wright, Esq., from the law firm of Levene, Gouldin & Thompson, LLP, Binghampton, NY.

Upon review of the hearing record and the attached Hearing Report, I hereby adopt its Findings, Conclusions and Recommendation as my own, subject to the comments below.

Based on the record before me, I conclude that the Barnes Creek Dam poses an imminent danger to the health and welfare of the people of New York, and is likely to result in irreversible and irreparable damage to the state's natural resources.

There is a debate about who owns the subject unsafe dame and Messrs. Janian and Kradjian have requisite declaratory judgment from the Tioga County Supreme Court on that question. Notwithstanding that cicavilaction, based on the hearing record before me, I find that Messrs. Janian and Kradjian have continuously owned the property since 1982. Alternatively, Respondents Janian and Kradjian are in constructive control of or maintained the unsafe condition of the subject dam. Accordingly, Respondents Janian and Kradjian are liable for the unsafe condition and are responsible for implementing the necessary remediation to abate the imminent danger caused by the deteriorated condition of the Barnes Creek Dam.

With respect to Respondent Barnes, I find that the Department did not obtain personal jurisdiction over him by attempting to serve the January 31, 2000 Summary Abatement Order and Notice of Hearing by overnight mail on him and his attorney, Mr. Konstanty.

NOW, THEREFORE, have considered this matter and being duly advised, it is ORDERED that:

Since the Department did not properly serve the January 31, 2000 Summary Abatement Order upon John R. Barnes, the Order is amended, without prejudice, to remove Mr. Barnes as a Respondent.

Other than the amendment identified in Paragraph I above, the Summary Abatement Order dated January 31, 2000 is confirmed and continues.

All communications between Respondents Henri Janian and Ara Kradjian, and the Department concerning this Order shall be made to the Department's Region 7 Director, 615 Erie Boulevard West, Syracuse, New York 131204.

The provisions, terms and conditions of this Decision and Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
April 24, 2000

To: John R. Barnes
2207 Lillyford Lane
Apex, North Carolina 27502

Henri Janian
Jenson Road
Vestal, New York 13850

Ara Kradjian
247 Lathrop Road
Binghampton, New York 13901

James E. Konstanty, Esq.
252 Main Street, Suite A
Oneonta, New York 13820

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

causing, engaging in or maintaining a condition or activity which presents
an imminent danger to the health or welfare of the people of the State of New York,
or which is likely to result in irreversible or irreparable damage to natural resources of
the state in violation of §71-0301 of the Environmental Conservation Law of the State of New York (ECL),
and Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) Part 620,
and the alleged violations of ECL Article 15 and 6 NYCRR Parts 608 and 673

by

John R. Barnes, Henri Janian, and Ara Kradjian

Respondents

DEC Case No.:R7-2000120-3

Hearing Report

by

/s/

Daniel P. O'Connell

Administrative Law Judge

Proceedings

In a Summary Abatement Order and Notice of Hearing dated January 31, 2000 (the Order and Notice),(1) the Commissioner found, based on the Department Staff's investigation, that John R. Barnes, Henri Janian and Ara Kradjian (the Respondents) were causing, engaging in and/or maintaining conditions and activities which presented an imminent danger to the health or welfare of the people of New York, or could result in irreversible or irreparable damage to natural resources through the continued operation of the Barnes Creek Dam located in the Town of Owego, Tioga County, New York. Due to the imminent threat to the people and the environment posed by the Barnes Creek Dam, the Commissioner ordered the Respondents either to repair the dam consistent with current safety criteria, or to drain the embankment in a controlled manner in order to breach and then remove the dam.

As provided by 6 NYCRR §620.3, Administrative Law Judge Daniel P. O'Connell from the DEC Office of Hearings and Mediation Services convened a hearing on February 8, 2000 at the Department's Region 7 Offices in Syracuse, New York. The purpose of the hearing was to provide the Respondents with an opportunity to demonstrate that the condition or activity, which is the subject of the summary abatement order, does not present an imminent danger to the health or welfare of the people of the state, or would not result in irreversible or irreparable damage to natural resources.

The DEC Region 7 Staff were represented by Jeffrey D. Brown, Esq., Regional Attorney, and Scott W. Crisafulli, Esq., Water Compliance Counsel. The Department offered the affidavits of Michael Stankiewicz, P.E., Chief, Bureau for Dam Safety, and Mr. Lepak, which were attached to the Order and Notice.(2) Mr. Stankiewicz provided additional testimony at the hearing.

Respondents Henri Janian and Ara Kradjian were represented by Michael R. Wright, Esq., from the law firm of Levene, Gouldin and Thompson, LLP, Vestal, New York. Mr. Wright filed an affidavit dated February 7, 2000 with attached exhibits.(3) Mr. Wright called Lawrence Lepak, P.E. from the Department's Dam Safety Unit as a witness.

Respondent John R. Barnes was represented by James E. Konstanty, Esq., Oneonta, New York. Mr. Konstanty offered an affidavit by Mr. Barnes.(4)

The Respondents' attorneys timely filed additional affidavits and memoranda of law by February 22, 2000. The Department timely filed its memorandum of law dated February 28, 2000. The stenographic transcript was received on March 6, 2000, whereupon the record of the proceeding closed.

Summary of Issues and the Parties' Respective Positions

Personal Jurisdiction

Mr. Barnes asserts that the Department does not have personal jurisdiction over him, and requests that the Commissioner remove his name from the Order.(5)

Liability

The Respondents dispute who owns the property on which Barnes Creek Dam is located.(6) Mr. Barnes asserts that he has not owned the property and the dam since December 1982.(7) Messrs. Janian and Kradjian allege, however, that Mr. Barnes agreed to re-purchase the property in September 1996.(8) Based on their respective claims, Mr. Barnes wants the Commissioner to find that Messrs. Janian and Kradjian are responsible for remediating the allegedly hazardous condition, and Messrs. Janian and Kradjian want the Commissioner to find that Mr. Barnes is responsible for the remediation.

Mr. Barnes asserts further that the Commissioner must resolve who owns the property before the Summary Abatement Order can be enforced.(9) Messrs. Janian and Kradjian assert, however, that determining who owns the property in question is beyond the scope of this administrative proceeding.(10) To resolve the dispute about who owns the property, Messrs. Janian and Kradjian have filed a petition dated February 9, 2000 with the Supreme Court (Tioga County, Index No.: 28406) for a declaratory judgment. Recently, Messrs. Janian and Kradjian filed a notice of motion for summary judgment dated March 27, 2000 to seek a determination that Mr. Barnes owns the property.

According to the Department, all three Respondents had owned the property jointly, and that either Mr. Barnes, or Messrs. Janian and Kradjian own the property now. Therefore, the Department argues that all three Respondents are responsible for complying with the terms and conditions of the Summary Abatement Order.(11)

Dam Safety

The Department has classified the Barnes Creek Dam as a "Class B" hazard, and rated the condition of the dam as unsafe. As a result, the Department wants the Respondents either to repair the dam consistent with current safety criteria, or drain the embankment in a controlled manner in order to breach and then remove the dam.(12) The Respondents do not challenge the Department's determinations about the dam's hazardous class or its safety rating.

Alleged Violations of ECL Article 15

At the hearing, the Department moved to expand the scope of this hearing concerning the Order to include a consideration of violations of ECL Article 15. The Department alleged that the Respondents failed to maintain the Barnes Creek Dam in violation of ECL §15-0507. The Department requested no additional relief other than the remediation already outlined in the Order.(13) The Department explained that the purpose of the motion is to preserve the right provided by ECL §15-0507, which allows the Department Staff to enter property and, if necessary, effectuate repairs to a dam, or remove a dam. To exercise that right with respect to the Barnes Creek Dam, the Department argued that it must demonstrate that the Respondents violated ECL Article 15.(14)

The Respondents objected. Mr. Barnes observed that the Order and Notice, and its attachments, do not allege any violations of ECL Article 15. Mr. Barnes argued that the Department's motion did not provide sufficient notice of the alleged violations.(15) Messrs. Janian and Kradjian presented similar arguments concerning the lack of adequate notice of the alleged violations.(16) In addition, they argued that the allegations lacked specificity. For example, the Department did not identify a time when the alleged violations occurred, how long they may have lasted, and who was allegedly responsible. Messrs. Janian and Kradjian also contended that the Department's assertion was overly vague concerning the "deteriorated condition" of the Barnes Creek Dam.(17)

At the hearing, I reserved ruling on the Department's motion.(18) Upon review, I hereby deny the Department's motion without prejudice. The Department did not adequately reference the particular sections of the ECL and regulations involved or provide a concise statement of the matters asserted as required by 6 NYCRR §622.3(a)(1)(ii and iii). In addition, the Department's motion was untimely in that it did not provide adequate notice of the alleged violations of the ECL until the hearing to consider the Summary Abatement Order convened on February 8, 2000.

Findings of Fact

The Barnes Creek Dam (Inventory No.: 86C-151) is located in the Town of Owego, Tioga County, NY. The dam is an earth embankment that was built around 1880, and was operated as a water supply reservoir for the Village of Owego until 1956 or 1969. The structure is about 350 feet long. The maximum height of the embankment is about 45 feet. The dam impounds about 120 acre-feet of water.

A drain pipe extends through the embankment, which can be used to drain the impounded water from behind the embankment.

Facing downstream, there is a spillway to the right of the embankment. The spillway channels excess water from behind the embankment to the downstream side of the dam. Since, the elevation of the spillway is lower than the elevation of the embankment, excess water behind the embankment passes through the spillway rather than over the top of the dam.

The spillway, which failed in 1921, was originally lined with boards and logs. In 1922, the spillway was reconstructed with concrete slabs.

Some time between 1922 and 1974, trees and other vegetation grew on the top of the earth embankment, which has compromised the integrity of the dam. During this period, the condition of the spillway also began to deteriorate. The concrete slabs that lined the spillway cracked, which allowed water to flow underneath the slabs and erode the soil. The erosion caused the slabs to settle. As a result, the slabs have continued to crack and break, which in turn results in more erosion. Presently, the displaced and broken slabs, and the continued erosion of soil jeopardize the integrity of the spillway.

Service of the Order and Notice upon the Respondents

On January 31, 2000, Commissioner Cahill signed the Order and Notice, which concluded that the condition of the Barnes Creek Dam posed an imminent danger to the people of New York and to the state's natural resources.

The Department sent copies of the Order and Notice by overnight mail (UPS) to the Respondents and their respective attorneys.

John R. Barnes resides in Apex, North Carolina. Henri Janian lives in Vestal, New York, and Ara Kradjian lives in Binghamton, New York.

Ownership

Prior to 1970, Messrs. Barnes, Janian, and Kradjian purchased the property on which Barnes Creek Dam is located. In 1982, Mr. Barnes conveyed his interest in the property to Messrs. Janian and Kradjian. The purpose of the transfer was to hide any conflict of interest that Mr. Barnes may have had as an IBM employee due to the anticipated sale of the property to that company. IBM, however, did not purchase the property.

In May 1993, Mr. Kradjian filed a Chapter 7 bankruptcy petition. Messrs. Janian and Kradjian filed a Quit Claim Deed dated September 12, 1996 with other documentation to conveyed all interests in the property back to Mr. Barnes. When Mr. Barnes did not record the deed and other documents with the Tioga County Clerk, Messrs. Janian and Kradjian provided Mr. Barnes with a duplicate deed and other materials in November 1998. To date, Mr. Barnes has not recorded the duplicate deed and other materials with the Tioga County Clerk.

Messrs. Janian and Kradjian did not transfer the property to Mr. Barnes in 1996 or in 1998. Therefore, Messrs. Janian and Kradjian are the current property owners, and have been the only property owners since December 1982.

Mr. Barnes refused to re-purchase the property due to the deteriorated condition of the dam.

The Condition of the Barnes Creek Dam since 1974

In a letter dated April 11, 1974, the Department informed Mr. Barnes about the condition of the Barnes Creek Dam and its spillway. At that time, the Department recommended that Mr. Barnes retain a professional engineer to evaluate the dam, to reconstruct the spillway, and to remove the trees growing on the embankment so that it could be regraded to an elevation higher than that of the spillway.

In a letter dated November 17, 1993, the Department classified the Barnes Creek Dam as a "Class B" hazard. In the letter, the Department recommended that Mr. Janian retain an engineer to repair the spillway, evaluate the seepage from the toe of the dam, remove the trees on top of the embankment so that it could be regraded, and repair or replace the drain valve. Alternatively, the Department recommended that the dam be breached, and removed.

Lawrence T. Lepak, P.E., an Environmental Engineer from the Bureau of Dam Safety, inspected the Barnes Creek Dam in January 1996, and found that the condition of the dam and spillway had deteriorated since 1993. Extensive erosion had continued to undermined the concrete slabs that line the spillway. As a result, the slabs were cracked and broken, and the sidewalls of the spillway were cracked and collapsing. In addition, mature trees were growing on the embankment, and the width and elevation of the top of the embankment were irregular. Water was seeping from below the drain pipe that extends through the embankment.

Michael Stankiewicz, P.E., Chief, Bureau of Dam Safety, inspected the Barnes Creek Dam on May 10, 1996 and found it in a condition similar to that observed by Mr. Lepak during the January 1996 inspection. Mr. Stankiewicz informed Mr. Kradjian about the poor condition of the dam by letter dated October 23, 1996.

Mr. Stankiewicz inspected the Barnes Creek Dam on December 6, 1996, August 5, 1998 and April 8, 1999. On each visit, the condition of the spillway had further deteriorated. As a result of these inspections, the Department rated the condition of the dam as "unsafe," which is the most severe condition rating that the Department can assign.

By letter dated May 12, 1999, the Department informed the Respondents about the unsafe condition rating of the Barnes Creek Dam. Enclosed with the Department's May 1999 correspondence was a "Compliance Schedule."

On July 31, 1999, Mr. Lepak inspected the dam. During the inspection, Mr. Lepak observed representatives from Piccirilli Construction, Inc., who had been retained by Messrs. Janian and Kradjian, open the drain valve as prescribed in the May 1999 Compliance Schedule. Due to the age and deteriorated condition of the valve, however, it would not open fully. When Mr. Lepak returned ten days later, the impoundment behind the dam was nearly empty.

Mr. Lepak visited the dam on January 7, 2000. On that date, the water level behind the embankment was about 3 feet below the elevation of the spillway. Although opened, the rate of discharge through the drain pipe was less than the rate observed in July 1999.

When Mr. Lepak inspected the dam on January 11, 2000, the impoundment was completely full, and water was discharging over the spillway. Mr. Lepak observed significant inflow into the embankment which reasonably suggests that water had been flowing over the embankment. Some water was passing through the drain pipe.

The following facilities are located downstream from the Barnes Creek Dam, and would be adversely impacted if the dam failed. There is a Lockheed-Martin manufacturing facility, a Hadco manufacturing facility and an Association of Retarded Citizens Workshop, which together employ about 5,000 people. There is a NYSE&G electrical substation that serves 1,225 residential customers and the Hadco facility. The Town of Owego operates a sewage treatment plant down stream from the dam, which serves 260 residential and commercial customers. Natural gas and water distribution lines serve the Lockheed-Martin and Hadco facilities. Taylor Road (a county highway), which crosses Barnes Creek downstream from the dam, averages 7,000 vehicles per day.

Failure of the Barnes Creek Dam could result in the sudden release of the impounded waters at such a rate and volume that it would cause extensive and severe damage to the facilities identified in the preceding finding.

Discussion

Personal Jurisdiction

In his affidavit,(20) Mr. Barnes claims that the Department does not have personal jurisdiction over him. At the hearing, Mr. Konstanty asserted that the Department did not properly serve the Order and Notice upon his client.(21) Mr. Barnes lives in Apex, North Carolina.

The Department may commence an enforcement proceeding by serving a summary abatement order pursuant to ECL §71-0301 and 71-1709.(22) Pursuant to ECL §71-1709(4), service of the summary abatement order must be by personal service, or service by registered or certified mail.

The Department provided an Affidavit of Mail Service(23) to demonstrate service of the Order and Notice. According to the affidavit, the Department sent copies of the Order and Notice by United Parcel Service (UPS) to Mr. Barnes at his North Carolina address and to Mr. Konstanty, as well as to the other Respondents and their attorneys. In addition to the Affidavit of Mail Service, the Department asserted at the hearing that service of papers on attorneys via overnight mail is authorized pursuant to the Civil Practice Law and Rules (CPLR) Rule 2103(b)(6).(24)

With respect to the captioned matter, I conclude that the Department has not obtained personal jurisdiction over John R. Barnes as prescribed by ECL §71-1709(4) for the following reasons. First, ECL §71-1709(4) does not authorize service by overnight mail. Even if overnight mail could be construed to be equivalent to registered or certified mail, the Department offered nothing to show that UPS actually delivered the Order and Notice to Mr. Barnes. When registered or certified mail is claimed, the recipient signs the domestic return receipt, which the US Postal Service returns to the sender as proof of delivery.

Second, the Department's reliance on CPLR Rule 2103(b)(6) is misplaced because that particular rule does not apply here. Rather, this rule applies to service of papers "in a pending action."(25) A pending action is one that has begun. Service of a summary abatement order and notice of hearing, however, is an attempt to begin an action.

Alternatively, by referring to CPLR Rule 2103, the Department infers that Mr. Barnes has designated Mr. Konstanty as his agent for service. CPLR Rule 318 does authorize the designation of an agent for service. However, this rule requires a written designation that must be filed with the county clerk where the designee has either a residence or an office. No one offered a certified copy of the designation, if it exists, and Mr. Konstanty did not admit that he was Mr. Barnes' agent for service.

Mr. Konstanty's appearance at the hearing on February 8, 2000 is not a waiver of his client's right to challenge the Department's attempt to obtain personal jurisdiction over Mr. Barnes.(26) Although Mr. Konstanty presented arguments, cross-examined witness, and filed a post hearing memorandum relating to the merits of this case, Mr. Konstanty expressly moved to dismiss the captioned matter against his client because the Department did not properly obtain personal jurisdiction over Mr. Barnes.

Since the Department has not obtained personal jurisdiction over Mr. Barnes, the Commissioner should amend the Summary Abatement Order to remove Mr. Barnes as a respondent in this action until the Department properly obtains personal jurisdiction over him.

Liability

According to Mr. Barnes, the Department did not classify the dam as a "Class B" hazard, or rate the dam as "unsafe" until 1993 or later. Since he has not owned the property since December 1982, Mr. Barnes argues that he cannot be held responsible for remediating the Barnes Creek Dam, as a former owner.(27) Because Mr. Barnes agreed to re-purchase the property in September 1996, Messrs. Janian and Kradjian allege that they are former owners and that, as the current owner, Mr. Barnes is responsible for remediating the dam.(28)

The Department contends that all three Respondents are responsible for complying with the terms and conditions of the Order, regardless of who owns the property now.(29) Citing Matter of Triad, et al., DEC File No.: 1-4350-90-09, Decision and Order dated December 4, 1991,(30) the Department asserts that all of the Respondents named in this action do not have to own the property now in order to be found liable for the remediation required by the Order. Referring to Triad, the Department argued that a party who was not the current owner of the landfill was held liable for remediation because that party contributed to the condition of the landfill. According to the Department, the facts in Triad are analogous to the captioned matter. Therefore, the Department asserts that the Respondents "participated, either directly or indirectly, in causing and maintaining the condition" of the dam.(31)

From the ownership dispute, another issue arises about whether the Commissioner has the authority to determine who owns the property. Mr. Barnes asserts that the Commissioner must resolve this issue.(32) Without offering any legal authority, Messrs. Janian and Kridjian contend otherwise.(33) In addition, Messrs. Janian and Kradjian have commenced an action in Supreme Court, Tioga County (Index No.: 28406) where they hope to show that Mr. Barnes owns the property.

The Department is concerned that Messrs. Janian's and Kradjian's court action to determine ownership will take too long to resolve given the deteriorated state of the Barnes Creek Dam. The Department argues that the Respondents can determine among themselves who is liable for the costs of complying with the Summary Abatement Order when the court finally resolves the ownership issue.(34)

To determine which Respondents are responsible for the remediation of the Barnes Creek Dam, I find it is necessary to determine who currently owns the property. The Commissioner cannot order a trespass, or direct another party to undertake an action on property owned by someone else.

With respect to the question of who owns the property, there is no dispute about the following facts. Around 1970, Messrs. Barnes, Janian, and Kradjian jointly purchased the property where the Barnes Creek Dam is located.(35) Then, Mr. Barnes conveyed his interest to Messrs. Janian and Kradjian in December 1982.(36) The purpose of the 1982 transfer was to hide any conflict of interest that Mr. Barnes may have had as an IBM employee due to the anticipated sale of the property to that company. In the end, however, IBM did not purchase the property.(37)

In September 1996, Messrs. Janian and Kradjian unsuccessfully attempted to convey all interests in the property back to Mr. Barnes by providing him with a copy of a Quit Claim Deed and other documentation.(38) When Mr. Barnes did not record the deed and other documents with the Tioga County Clerk, Messrs. Janian and Kradjian provided Mr. Barnes with duplicate materials in November 1998.(39)

Mr. Kradjian alleges that Mr. Barnes agreed in September 1996 to purchase the property "as is."(40) In addition, Messrs. Janian and Kradjian argue that the transfer of real property is accomplished by the delivery of an executed deed,(41) and that recording a deed is not required to transfer title under New York law.(42) However, the other cases cited by these Respondents state that the conveyance takes place when the deed is delivered by the grantor and accepted by the grantee.(43)

Mr. Barnes' November 1995 letter acknowledges a "risk factor" associated with the property.(44) It can be reasonably inferred that Mr. Barnes' acknowledgment was based on the Department's November 17, 1993 correspondence.(45) When the conditions of the spillway and the embankment deteriorated further, as documented in the Department's subsequent correspondence dated October 23, 1996,(46) Messrs. Janian and Kradjian may not have truthfully informed Mr. Barnes about the condition of the Barnes Creek Dam and the Department's concerns about it. Mr. Barnes claims that Messrs Janian and Kradjian actually provided him with erroneous information,(47) which is reasonable because Mr. Kradjian was involved in a Chapter 7 bankruptcy proceeding. After determining the actual condition of the dam, Mr. Barnes reconsidered his initial offer to re-purchase the property, and refused to accept the transfer from Messrs. Janian and Kradjian.(48)

Mr. Barnes, as the grantee, did not accept the "Quit Claim Deeds" due to the deficiencies associated with the dam, which deteriorated further from November 1995 to October 1996. For the purposes of this action, I find that Messrs. Janian and Kradjian did not transfer the property to Mr. Barnes in 1996 or in 1998. Consequently, I find further that Messrs. Janian and Kradjian are the only property owners now, and have been the only property owners since December 1982.

Mr. Kradjian contends further that Mr. Barnes has loaned him money to pay the property taxes, and implies that Mr. Barnes still has an interest in the property, which in turn should make him responsible for remediation.(49) I do not find Mr. Kradjian's assertion credible, and therefore assign it no weight. A review of the tax records shows that over the years, all three Respondents have been listed as the property owners. In addition, the records show that all property taxes have been paid in full. However, the records do not show which individual, or individuals, actually paid the taxes for any given year.(50) In addition, Mr. Kradjian has an interest in making this assertion to avoid having to comply with the Order.

Messrs. Janian and Kradjian assert that Triad is distinguishable from the captioned matter based on the facts. Based on their contention that they are former owners, Messrs. Janian and Kradjian also cite Matter of Harrower Pond Dam, (Edward L. Wilkinson and GWK Reality Corporation, Respondents) Hearing Report, dated August 6, 1980(51) for the proposition that the applicable statutes and regulations concerning dam construction and safety apply only to the current owner.(52) This argument is moot based on the finding that Messrs. Janian and Kradjian are the current owners and not former owners, as they contend. Since Messrs. Janian and Kradjian are the current property owners and have owned the property since 1982, they are responsible for implementing the remediation at the Barnes Creek Dam.

Despite their claim concerning ownership, Messrs. Janian and Kradjian have responded to the Commissioner's Order by retaining representatives from Piccirilli Construction, Inc. to open the value and drain the embankment. Based on an invoice from Piccirilli Construction, the impoundment was drained between July 29 and 31, 1999 at a cost of $1,800.00 to these Respondents. In addition, Messrs Janian and Kradjian have retained Keystone Trozze, LLC, Architects and Engineers, and Piccirilli Construction to keep the impoundment drained.(53)

Finally, I note that Respondent Barnes has filed a petition dated March 23, 2000 pursuant to CPLR Article 78 in the Supreme Court (Otsego County) seeking judicial review of the Commissioner's January 31,2000 Summary Abatement Order.

Dam Safety

The Department's dam safety regulations are found at 6 NYCRR Part 673. These regulations apply to dams that are 10 feet or higher, impound 1 million gallons (3.07 acre-feet) or more of water, have a drainage area of 1 square mile or more, or present a threat to public health, safety, property or natural resources. Part 673 applies to the Barnes Creek Dam because the embankment is 45 feet high, and it impounds 120 acre-feet of water.(54) In addition, the dam presents a threat to public safety and property due to its unsafe condition rating.

Section 673.3 authorizes the Department to assign a hazard classification to dams. The classification depends on the what the potential impacts would be if an embankment failed. In a letter dated November 17, 1993 to Mr. Janian, the Department classified the Barnes Creek Dam as a "Class B" hazard.(55) Dams assigned this hazard classification are located in areas where failure may damage isolated homes, main highways, minor railroads, interrupt the use of relatively important public utilities and/or will cause significant economic loss or serious environmental damage.(56)

The Respondents do not challenge the Department's determination to classify the Barnes Creek Dam as a Class B hazard. The Department showed that manufacturing facilities, an electrical substation, a sewage treatment plant, natural gas and potable water supply pipelines, and a county highway are located downstream from the dam.(57) According to the unrefuted testimony of the Department's expert witnesses, these facilities would be seriously impacted if the Barnes Creek Dam failed.(58)

In addition to a hazard classification, the Department assigns each dam a condition rating. (59) After inspections conducted in December 1996, August 1998 and April 1999, the Department rated the condition of the Barnes Creek Dam as "unsafe."(60) Unsafe dams have deficiencies of such a nature that failure of the embankment is imminent. The deficiencies that could result in this condition rating include: seepage, significant erosion problems, and serious structural deficiencies. As a result, an unsafe condition rating requires immediate action to eliminate or reduce the imminent danger associated with potential failure.(61)

The Respondents do not challenge the Department's unsafe condition rating for the Barnes Creek Dam. The photographic evidence(62) as well as the unrefuted testimony of the Department's expert witnesses(63) show the significant erosion problems and serious structural deficiencies associated with the dam and its spillway. The Department has documented these unsafe conditions since the mid-1970s as demonstrated by its April 1974 letter to Mr. Barnes.(64)

As required by 6 NYCRR §620.3, the Department must provide for a hearing after serving the summary abatement order. The purpose of the hearing is to provide the respondent(s) with an opportunity to demonstrate that the condition or activity, which is the subject of the order, does not present an imminent danger to the health or welfare of the people of the state, or would not result in irreversible or irreparable damage to natural resources.

As explained above, the Respondents did not challenge the Department's Class B hazard classification or the unsafe condition rating assigned to the Barnes Creek Dam. By regulation, the unsafe condition rating assigned to the Barnes Creek Dam presumes imminent failure. The Class B hazard classification and the unsafe condition rating of the Barnes Creek Dam establish an imminent danger to the health or welfare of the people of New York which is likely to result in irreversible or irreparable damage to natural resources. As described in the Order, this dangerous condition, which relates to the prevention and abatement powers of the Commissioner, still exists.

Conclusions

With respect to the captioned matter, the Department has not obtained personal jurisdiction over John R. Barnes as prescribed by ECL §71-1709(4).

Since Messrs. Janian and Kradjian are currently the only property owners and have been the only property owners since 1982, they are responsible for implementing the remediation outlined in the Order.

The Class B hazard classification and the unsafe condition rating of the Barnes Creek Dam establish an imminent danger to the health or welfare of the people of New York which is likely to result in irreversible or irreparable damage to natural resources. As described in the Order, this dangerous condition, which relates to the prevention and abatement powers of the Commissioner, still exists.

Recommendations

Since the Department has not obtained personal jurisdiction over Mr. Barnes, the Commissioner should amend the Summary Abatement Order to remove Mr. Barnes as a Respondent in this action until the Department properly obtains personal jurisdiction over him.

Because I denied the Department's motion to expand the scope of the hearing to include alleged violations of ECL Article 15, the Commissioner should amend the caption of this matter to exclude the following, "and alleged violations of ECL Article 15 and 6 NYCRR Parts 608 and 673."

Messrs. Janian and Kradjian should continue and/or immediately undertake any and all measures set forth in the January 31, 2000 Summary Abatement Order, which should be affirmed, except for the amendment noted above.

19. The Findings of Fact regarding the Barnes Creek Dam are based on the uncontroverted statements presented in Mr. Stankiewicz' Affidavit dated January 26, 2000, which is attached to Exhibit 3, as well as Mr. Stankiewicz' testimony (Tr. 104-109, 121-129).